On Monday, in Utah v. Strieff, the Supreme Court blew a hole in the Fourth Amendment’s prohibition against unlawful search and seizure in a manner that will have grave repercussions for Black and brown people in this country.
We have always experienced the world differently than our white counterparts. Whereas white people can negotiate the world in which they live with relative ease and without grave fear for their livelihood as a result of interactions with police or vigilantes, Black and brown people don’t have that luxury.
Justice Sonia Sotomayor understands this. She has always understood this. And in her blistering dissent in Strieff, she made it clear that the Court’s decision with Justice Clarence Thomas writing for the majority would negatively impact brown and Black people.
William Stern at Slate has published an article that details the facts of the case, and it is well worth reading. A brief recap: In Strieff, narcotics detective Douglas Fackrell was conducting surveillance on a Salt Lake City residence based on an anonymous tip he had received about drug activity. After observing numerous people visiting the house during the course of a week, he became suspicious that the residents of the house were dealing drugs. One day, he saw Edward Strieff leaving the house. Fackrell detained Strieff, identified himself, and asked what Strieff was doing at the house. He then requested Strieff’s identification and discovered, after relaying the information to a police dispatcher, that Strieff had an outstanding arrest warrant for an unpaid parking ticket. Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia.
Strieff moved to suppress the evidence, arguing that it had been obtained through an unlawful investigatory stop. The Fourth Amendment protects people from “unreasonable search and seizures.” Officer Fackrell breached that constitutional protection when he detained Strieff to check Strieff’s identification without any evidence that Strieff was engaged in a crime. The prosecution did not deny that the initial stop was unlawful. It argued however, that intervening circumstances—Fackrell discovering the outstanding arrest warrant—“attenuated,” or weakened, the connection between the unconstitutional investigatory stop and the evidence that was seized as a result of a lawful arrest.
Thomas, writing for the Supreme Court, accepted the state’s argument.
Justice Sotomayor wasn’t having any of it. “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she began, before launching into a scathing dissent that some have perhaps rightfully called a Black Lives Matter manifesto.
“This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong,” she continued.
“The Fourth Amendment should prohibit, not permit, such misconduct,” she declared.
The Court justified its reasoning, in part, by pointing out that the event in question was “isolated” with “no indication that this unlawful stop was part of any systemic or recurrent police misconduct.”
That Justice Thomas thought—much less wrote—such a thing demonstrates how painfully out of touch he is with communities of color.
Since the killing of Trayvon Martin by a vigilante neighborhood watch captain, the nation has been enthralled by an ongoing conversation about the violence that is meted out against Black and brown people at a rate that far exceeds that of white people. Conversations about what it’s like to live as a Black person in America have proliferated. Conversations between Black women about their fears in raising a Black child in America reveal anxiety that is heartbreaking.
With nods to great Black thinkers like Michelle Alexander, W.E.B. DuBois, James Baldwin, and Ta-Nehisi Coates, Sotomayor noted that “[f]or generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to him.”
This sort of dissent comes as somewhat of a surprise, insofar as I can’t recall reading a better Supreme Court indictment of the overpolicing that communities of color face. But for anyone who has more than a passing knowledge of Sotomayor’s character, her dissent is actually a natural extension of her belief system.
Before her nomination, Sotomayor gave a speech at University of California, Berkeley, during which she mused that “a wise Latina with the richness of her experiences would more often than not reach a better conclusion than a white male judge who hasn’t lived that life.”
That simple statement—with which I agree—nearly sank her nomination.
She found herself under fire during her confirmation hearings eight years later, when the members of the Senate Judiciary Committee took her comments to mean that she believed that she would be a better justice than a white man, or that she would be unable to be impartial when it came to ruling from the bench.
But nothing could be further from the truth. What Sotomayor—perhaps inartfully—was alluding to was the ways in which all of us—including judges and justices—are the sum of our experiences, and the ways in which we bring those experiences to bear in our decision-making processes.
Sonia Sotomayor firmly believes that life experience affects one’s performance at a job, and that such experience breeds empathy for the parties whose lives will be changed by her performance as a judge.
Certainly, Sotomayor doesn’t believe that only people of color can empathize with the struggles of people of color in this country. Pointing to the landmark case Brown v. Board of Education, in which an all-white and -male Court found school segregation to be unconstitutional, she said during her Berkeley speech, “[W]e should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable .… [N]ine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.”
“However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence one must accept the proposition that a difference there will be by the presence of women and people of color on the bench,” she continued.
“Personal experiences affects the affect the facts that judges choose to see .… I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”
In Strieff, Sotomayor showed us what that difference will be. As a brown woman from the Bronx, she understands the over-policing that occurs in communities of color. She understands that interactions with the police routinely strip innocent Black and brown people of their dignity.
“Writing for myself, and drawing on my professional experiences, I would add that unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name,” Sotomayor wrote.
“Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more,” Sotomayor continued.
“This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved,” she explained.
She went on to describe the indignity of the stop, which includes an officer “telling you that you look like a criminal,” “order[ing] you to stand “helpless, perhaps facing a wall with [your] hands raised,” and “feel[ing] with sensitive fingers every portion of your body” as an officer “frisks you for weapons.”
She noted, citing the U.S. Department of Justice report on its investigation of the Ferguson Police Department, that “many innocent people are subjected to the humiliations of these unconstitutional searches.”
In short, only Sotomayor, or a judge who values empathy as part of the adjudication process as much as she does, could have or even would have written the sort of dissent that she did in Strieff.
That is not to say that the eight other Supreme Court justices are lacking in empathy or that any federal jurist is. It is also not to say that Sotomayor’s life experience would somehow negate her commitment to the fair application of the rule of law. But it is to say that Sotomayor, and President Obama, who nominated her to the bench, saw a specific value in Sotomayor’s life experience and believed that it would add a perspective to the court that had been lacking up to that point.
As President Obama remarked when he announced her nomination, “It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court.”
Before you think, “Well, of course, Obama and Sotomayor would believe that empathy is a key ingredient to fair adjudication. They’re both people of color,” would it make a difference if I told you that former Supreme Court Justice Oliver Wendell Holmes Jr. held similar beliefs? Because he did, having once said “[t]he life of the law has not been logic; it has been experience.”
However, before lauding him as some sort of social justice warrior, I would be remiss if I did not point out that like nearly every Supreme Court justice to sit on the bench, Holmes was a white man. And as many people of color already know, the white male experience tends to be viewed as the default experience.
In a law review article titled “Empathy and Experience in the Sotomayor Hearings,” Professor Kathryn Abrams describes the fervor surrounding Sotomayor and the fear expressed by the Judiciary Committee—comprised mostly of white men—that Sotomayor’s acknowledgement that her life experience would inform her judging, and her belief it might be a good thing, would be the death knell of impartial Supreme Court jurisprudence.
But nothing could be further from the truth. Strieff demonstrates that her life experience enabled her to view the case in a different light—in a light that perhaps her white counterparts could not.
“The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny,” she continued.
With all due respect to Sotomayor, for some it is a secret. Or if not a secret, certainly a truth they would rather deny.
And it is for that reason that we need more people like Sotomayor on the bench. Obviously, it is not simply a matter of having any person of color on the bench. Clarence Thomas is a Black man, and he routinely ignores the racial realities that make up the everyday lives of Black people in this country—as evidenced not only by the fact that he authored the majority opinion, but also by the fact that he seems disconnected from the Black community and our truths.
We need people of color and women on the bench who identify with the struggles of people of color and women, so that when cases like Strieff reach the Court’s front door, we have justices who can understand our struggles and explain those struggles to other justices willing to hear them.